Jenkins v Police
[2018] NZHC 2055
•13 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-102
[2018] NZHC 2055
BETWEEN TYRONE LEE JENKINS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 6 August 2018 Appearances:
E I Haronga for Appellant C Juneja for Respondent
Judgment:
13 August 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 13 August 2018 at 11:00 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland
JENKINS v POLICE [2018] NZHC 2055 [13 August 2018]
Introduction
[1] Tyrone Jenkins pleaded guilty to two charges of driving whilst disqualified (third or subsequent)1 and one of failing to answer District Court bail.2 On 6 April 2018, he was sentenced to two years and five months’ imprisonment in the District Court.3 He now appeals against that sentence.
The offending
[2] On 31 May 2017, at around 10.20 am, the police observed Mr Jenkins in the driver’s seat of a stationary vehicle parked on the roadside on Waiheke Island. The car keys were in the ignition and he admitted to the police that he had been driving. Mr Jenkins explained that the toilet where he lived was not working and he had driven to use the local public toilet. On appeal, his partner has affirmed an affidavit supporting his explanation. She says the house where they were living with their children is “run down” and the toilet had been out of operation for more than a week. She further says that at the time Mr Jenkins drove to the public toilet, she was busy taking the children to school. She attaches a letter from a certifying plumber confirming that he was contacted and requested to clear a blocked toilet at the address and had attended to repair it on 1 June 2017.
[3] Mr Jenkins first appeared in the Auckland District Court on 6 June 2017 charged with driving while disqualified having been convicted at least twice previously. He was subsequently released on bail on 22 June 2017. Pursuant to the conditions of bail, he was required to appear at the Auckland District Court on 18 September 2017. He failed to do so.
[4] On 22 September 2017, at around 8.35 pm, Mr Jenkins who was still a disqualified driver, was stopped by the police while driving on State Highway One near Wellsford. His partner was with him in the car. He had been driving at a speed of 107 kilometres per hour (kph) in an area where the limit was 80 kph. Mr Jenkins
1 Land Transport Act 1998, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000; mandatory disqualification from driving for one year (or more).
2 Bail Act 2000, s 38(a); maximum penalty one year’s imprisonment or a fine not exceeding $2,000.
3 Police v Jenkins [2018] NZDC 11658.
immediately volunteered to the police that he was a disqualified driver. He explained to the police that he was driving because his partner was unwell.
[5] In her affidavit Mr Jenkins’ partner explains that in the period leading to 22 September, she had been preparing to travel to Kaipara for the unveiling of her late father’s headstone. She says that she had been planning to drive and take Mr Jenkins with her as a passenger. Because she had become unwell and was in pain, she had asked Mr Jenkins to drive. She explains that although she had managed to attend the unveiling, she shortly thereafter discovered that she had been experiencing a miscarriage at the time. She attaches a letter from a Waiheke Island-based registered nurse confirming that she had consulted a medical practitioner on 21 September 2017.
[6] Mr Jenkins has an extensive history of driving offences. In total, he has been convicted of driving whilst disqualified seven times. He was sentenced to indefinite disqualification on 16 February 2010, 26 September 2011 and 21 May 2013. He has been convicted of driving with excess breath alcohol five times.
District Court decision
[7] In the District Court on 6 April 2018, Judge Ronayne sentenced Mr Jenkins to two years and five months’ imprisonment. In determining the sentence the Judge considered the following to be aggravating features:
(a)The considerable delays that had been caused by Mr Jenkins’ failures to attend court.
(b)The convictions were Mr Jenkins’ sixth and seventh convictions for driving whilst disqualified.
(c)The seventh conviction relating to driving on 22 September 2017 was for offending committed whilst Mr Jenkins was on bail. That offending involved speeding and affected road safety.
[8] The Judge also noted Mr Jenkins’ criminal record including his five drink- driving convictions, and furthermore that in 2013 he breached home detention
conditions on five occasions. The Judge also observed that the pre-sentence report had been prepared without Mr Jenkins’ input as he had failed to contact the report writer, which he said was typical of his attitude to compliance with court orders and directions. The Judge then said:4
I take these starting points; for the first disqualified driving, 12 months in prison. For the breach of bail, four months in prison. For the second driving while disqualified on bail, 22 months’ prison, that disqualified driving was at or near the worst of its kind. That totalled comes to 38 months in prison.
I take four months off that to recognise the totality of your offending. I do not apply any uplift to your overall end sentence for your previous convictions because those really are recognised in the nature of the offending itself. I take 15 percent off for your guilty pleas which is more or less five months. That brings the notional sentence then down to one of 29 months’ imprisonment.
[9] Judge Ronayne then sentenced Mr Jenkins to 10 months’ imprisonment for the sixth driving while disqualified charge on 31 May 2017; three and a half months’ imprisonment for breaching his bail by failing to appear (concurrent); and one year and seven months’ imprisonment for the seventh driving while disqualified charge, to be cumulative “on the disqualified driving sentence of one year on 7329.”5
[10] Mr Jenkins was also disqualified for one year on each driving whilst disqualified charge.
Appeal
[11] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow a sentence appeal if it is satisfied that, for any reason, there is an error in the sentence imposed, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.6 The ultimate question remains whether the end sentence was manifestly excessive.7
[12]Mr Jenkins appeals on the following grounds:
4 At [6]–[7].
5 CRN 17004007329 charges Mr Jenkins with driving while disqualified on a road on Waiheke Island on 31 May 2017, for which the Judge had imposed a sentence of 10 months’ imprisonment and not one year as he states. It appears therefore that the Judge made an error in referring to a one-year sentence on “7329” which was in fact the starting point he adopted for this charge at [6].
6 Criminal Procedure Act 2011, s 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [33].
(a)The Judge adopted starting points for the two disqualified driving offences that were too high.
(b)The Judge adopted an “unprincipled methodology”.
(c)The Judge double counted an aggravating feature, namely causing delays by failing to attend court.
(d)The Judge gave insufficient credit for Mr Jenkins’ guilty pleas.
[13] Ms Haronga for Mr Jenkins submits that the Judge ought to have adopted the approach of selecting one charge as the lead offence and determining a starting point, then uplifting for the second driving charge and other offending, before addressing aggravating and mitigating factors. She submits that an end sentence of around 10 – 11 months’ imprisonment would be appropriate to meet the relevant purposes and principles of the Sentencing Act 2002.
[14] It is common ground between counsel that the Judge erred in his adoption of starting points for the disqualified driving charges. The respondent accepts that the Judge adopted starting points that exceeded those adopted for comparable offending. The respondent submits that the end sentence should have been between 21 and 26 months’ imprisonment. Ms Juneja for the respondent submits, however, that the methodology by which the end sentence was reached is of less importance, so long as the end sentence was within the available range, or was not manifestly excessive. She submits that the Court may consider 29 months manifestly excessive, or alternatively that it was stern but available.
Analysis
[15] An examination of the authorities establishes that two differing approaches have been adopted by the courts for sentencing on charges for driving while disqualified.8 The first involves setting a starting point for the specific offence of driving while disqualified, and then uplifting it for previous offending, including
8 Opetaia v Police [2015] NZHC 2532 at [36].
previous convictions for driving whilst disqualified, as a personal aggravating factor.9 The second approach involves setting a starting point with reference to the most recent driving whilst disqualified offence, and uplifting for any additional driving whilst disqualified charges on which the defendant is being sentenced.10 Previous driving whilst disqualified convictions are subsumed within that analysis – they are not counted as personal aggravating factors.
[16] I prefer the second approach, which is supported by the weight of the authorities,11 for the reasons explained by Mander J in Sykes v Police:12
Intrinsic to an offence of driving while disqualified being a third or subsequent offence is the recidivism inherent in the offender’s conduct. The seriousness of the offence and the need to set a higher starting point derives from the repetition of the prohibited driving. The seriousness of the offender’s conduct directly relates to the number of previous occasions the driver has flouted disqualification orders.
[17] However, regardless of which approach is adopted it should lead to the same result.13 The key question remains whether the end sentence of two years and five months’ imprisonment was manifestly excessive.
[18] Starting with the seventh conviction, Ms Haronga for Mr Jenkins says a starting point of six to eight months is appropriate. Ms Juneja for the respondent, on the other hand, argues for a starting point in the vicinity of 12 to 15 months.
[19] While a strictly mathematical approach is not appropriate when assessing this type of offending, the number of previous driving whilst disqualified convictions is “strongly and directly relevant in assessing the starting point”.14 The following cases illustrate the levels and range of starting points that have been adopted:
9 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009 and Keenan v Police [2014] NZHC 1894.
10 Drinkwater v Police [2013] NZHC 1036; Maxwell v Police [2013] NZHC 3172; Sykes v Police
[2014] NZHC 2642 and Apiata v Police [2016] NZHC 3119.
11 Opetaia v Police [2015] NZHC 2532 at [36].
12 Sykes v Police [2014] NZHC 2642 at [10].
13 Opetaia v Police [2015] NZHC 2532 at [36].
14 Opetaia v Police [2015] NZHC 2532 at [38] and Whitley v Police [2016] NZHC 1025 at [30].
(a)In Peterson v Police, Duffy J adopted a starting point of 10 months imprisonment for a seventh conviction.15 Her Honour then applied an uplift of seven months because of the defendant’s criminal record, including for his six previous driving whilst disqualified convictions.
(b)In Finch v R, the Court of Appeal upheld a sentence of one year and six months for three driving whilst disqualified charges (fifth, sixth and seventh) and one of attempting to pervert the course of justice.16 A starting point of six months was adopted for attempting to pervert the course of justice, which was increased by 14 months for the three disqualified driving charges, and the Court added a further uplift of six months to reflect the defendant’s previous record and for offending while on bail. The District Court reduced the starting point by one month for a belated guilty plea and a further three months for youth, thereby yielding a sentence of 22 months’ imprisonment, which was further reduced on a totality basis to an end sentence of 18 months’ imprisonment. The Court of Appeal expressed some concern regarding the uplift to recognise the previous offending, commenting that: “in so far as the previous offences involve disqualified driving, the higher starting point for third and subsequent already reflects that, although we accept this is multiple examples of committing that aggravated offence ”.17
(c)In Iwikau v Police, Williams J observed that the authorities suggest a starting point of six to 10 months is available for a seventh driving while disqualified conviction:18
The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences. For instance, a fifth conviction warranted a starting point of two months, while an eleventh conviction was held to warrant a starting point at or around the maximum of two years.
[footnotes omitted]
15 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
16 Finch v R [2012] NZCA 446.
17 At footnote 2.
18 Iwikau v Police [2013] NZHC 2515 at [13].
(d)In Whitley v Police, Wylie J upheld a starting point of 10 months for the eighth driving whilst disqualified conviction, and imposed an uplift of four months each for the sixth and seventh convictions, instead of the six-month increases in the District Court. The sixth and seventh offences were committed when the defendant was on bail, and the defendant’s explanations for driving suggested “he was simply flouting the disqualification”.19 These included that he was driving to see his mother and he was looking for his sister.
(e)In Opetaia v Police, Moore J upheld a starting point of 10 months for the eighth driving while disqualified conviction together with three- month uplifts for each of three other driving while disqualified charges. The defendant was subject to a sentence of intensive supervision during the offending and was on bail at the time of at least one of the charges.20 His Honour said:21
While a starting point of 10 months' imprisonment is stern and is certainly at the upper end of the available range I do not consider it was outside the Judge's sentencing discretion. More particularly, having regard to the Court of Appeal's observations in Finch I am satisfied that the persistent nature of the offending, involving as it does four discrete episodes of offending leading to an eighth conviction deserved the stern judicial response it attracted. This is particularly so in light of Ms Opetaia’s dogged non-compliance with various Court orders in the past. A deterrent sentence which denunciated such an apparently cavalier, if not contemptuous, attitude to compliance with Court orders was called for.
(f)In Apiata v Police, Clifford J adopted a starting point of 12 months for the 22nd driving whilst disqualified conviction and increased it by six months each for the 18th, 19th, 20th and 21st convictions.22
(g)In Russell v Police, Lang J upheld a starting point of nine months for an eighth driving whilst disqualified conviction.23
19 Whitley v Police [2016] NZHC 1025 at [31].
20 Opetaia v Police [2015] NZHC 2532 at [19].
21 Opetaia v Police [2015] NZHC 2532 at [40].
22 Apiata v Police [2016] NZHC 3119 at [21].
23 Russell v Police [2018] NZHC 858 at [6]–[7].
[20] Turning then to the present case, three features are noteworthy. First, Mr Jenkins was speeding on the seventh occasion which aggravates the offending. Second, Mr Jenkins was on bail at the time of the seventh offence. That too aggravates the offending. Third, I am satisfied that Mr Jenkins gave genuine explanations for driving on the two occasions for which he is charged. His explanations are backed up by the contents of his partner’s affidavit evidence which I am prepared to admit and accept for the purposes of this appeal. While those explanations do not excuse his offending, I nevertheless consider that they make him less culpable than a defendant who is simply flouting their disqualification,24 or driving for a non-essential reason such as returning a lawn mower.25
[21] Having regard to these factors, and to the comparable cases, I consider that adopting a starting point of nine months is appropriate for the seventh conviction.
[22] Ms Haronga submits the starting point should be increased by three months because of the sixth conviction. Ms Juneja says an increase of three to five months would be appropriate. For the sixth conviction I consider that a three-month uplift to the starting point is appropriate. I further increase the starting point by another three months in respect of the charge of failing to appear. That brings the overall starting point to one year and three months’ imprisonment.
[23] Turning to personal factors, I make no uplift. While Mr Jenkins has five drink driving and two careless driving convictions, aside from the present offending he has not committed any offences since October 2013. Some of the drink driving and careless driving offences also occurred more than 20 years ago. Furthermore, his history of driving whilst disqualified has already been taken into account in setting the starting point.
[24] As regards the guilty pleas, Mr Jenkins initially pleaded not guilty to the sixth driving whilst disqualified charge on 22 June 2017, and later changed the plea to guilty on 20 February 2018. As regards the seventh disqualified driving charge, he first appeared in court on 5 October 2017 and entered a guilty plea on 10 November 2017.
24 Whitley v Police [2016] NZHC 1025 at [31].
25 Opetaia v Police [2015] NZHC 2532 at [43].
On the charge of failing to comply with his bail conditions it appears he entered a plea of guilty on 20 February 2018. It therefore appears that while the guilty plea for the seventh disqualified driving charge was entered reasonably promptly, the guilty pleas for the other charges were not entered until the proceeding had been underway for some time. In these circumstances, I would adopt a 20 per cent discount or three months.
[25] This brings the end sentence to one year of imprisonment. In light of the disparity between the end sentence that I have found to be appropriate, and the sentence of two years and five months imposed by the District Court Judge, I am satisfied the end sentence imposed by the District Court was manifestly excessive.
[26] Mr Jenkins does not appeal against the sentence of three and a half months’ imprisonment for breaching conditions of bail by failing to adhere and on which Judge Ronayne imposed a concurrent sentence.
Home detention
[27] The end sentence is within range for the consideration of home detention. Mr Jenkins seeks leave to apply for home detention, pending information about a suitable address. He wants to pursue the process of lifting his indefinite disqualification. And he wants to be there to support his family. If there is a suitable address, I may impose that sentence if I am satisfied it would be appropriate in light of the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act 2002.26 But I am not satisfied it would be, because of three reasons.
[28] First, I am not satisfied a sentence of home detention will assist in Mr Jenkins’ rehabilitation. To the contrary, I doubt Mr Jenkins’ ability to comply with such a sentence. He has breached home detention five times in the past.
[29] Second, Mr Jenkins has not expressed remorse or displayed any insight into his offending. As the District Court Judge noted, he did not engage with the pre-sentence report writer, despite being given several opportunities to do so. I
26 Manikpersadh v R [2011] NZCA 452.
consider a sentence of imprisonment is necessary to promote a sense of responsibility in Mr Jenkins and to hold him accountable for his offending.
[30] Third, recidivist driving offending is serious and poses a risk to others on the roads. It must be denounced and deterred, and Mr Jenkins must be deterred personally too.
Result
[31]The appeal is allowed.
[32] The sentence of two years and five months’ imprisonment is quashed. In its place, I impose a sentence of one year imprisonment on each of the driving while disqualified charges to be served concurrently.
[33] The sentence of three and a half months’ imprisonment imposed by Judge Ronayne on the breach of bail charge remains in place, to be served concurrently with the sentence of one year imprisonment imposed on appeal.
[34]The disqualification periods imposed by the Judge are to remain in place.
Paul Davison J
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